Finally, we have legally obtained the settlement agreement [PDF] between USL and The Regents of the University of California settling their 1990s lawsuits, thanks to Groklaw's dburns, who figured out that California has a Public Records Law, under which he made persistent application to obtain this document. Finally, after dotting all the i's and crossing all the required t's, he received the document from The Regents of the University of California's Office of the General Counsel, with a cover letter that reads in pertinent part:

"This is in further response to your request for legal filings, deposition transcripts, court orders and settlements in the California Superior Court case no. 717864-3.
We have determined that the confidential 1994 settlement agreement between UNIX System Laboratories, Inc. and The Regents which was not filed with the court, may be disclosed to you under the Public Records Act."

And so the bullying by secrecy is over.

It's a peace treaty between the parties, neither of whom actually agrees that the other's claims are necessarily true, but they agree as to what each will do going forward to lay down their arms. USL claimed ownership over certain files, as you can see in the opening words of the settlement:

"1. USL contends it is the owner of the intellectual property rights in portions of certain computer operating system software (the 'UNIX System')."

Contending and proving are two different things. The University agrees that portions of its software "were developed independently by University personnel and others and portions of said releases were derived from versions of the UNIX System licensed to the University" and USL acknowledges that it "incorporated material derived from the BSD Releases in versions of the UNIX System". The parties then go on to work out their differences.

There are four categories the parties place various files into, categories they agreed to, not you and I, to settle the action, "Restricted Files" (Exhibit A), "UNIX Derived Files" (Exhibit B), which includes 23 files USL approved for release in BSD4Lite, and "Unrestricted Files" (Exhibit C).

"Restricted Files" are files contained in Net2 which "USL contends contain materials from the UNIX System and/or use or disclose methods and concepts in the UNIX System and whose further distribution is restricted pursuant to this Settlement Agreement." To put a finer point on it, these are files that *the University* agreed they wouldn't further distribute. They also agreed to "take reasonable steps" to "encourage" everyone with access to Net2 to switch to 4.4 BSD(Lite).

In addition, the University agreed that USL could "undertake an effort to advise persons of USL's contention that the Restricted Files may contain material that is proprietary to USL." "Contention." "May contain..." The University isn't even signing off on USL's contentions. And I note what seems like a Get-Out-of-Jail-Free card, in section 3c:

"c. USL agrees that it shall take no action against any person who utilizes any methods and concepts in the Restricted Files which as of this date have become available to the general public by acts not attributable to the University, its employees or students. Nothing in this provision shall limit USL's rights against a third party arising out of a breach of any license agreement with USL or AT&T."

Now we know why SCO keeps telling us the case is "just a contract" case, why it has a penchant for suing only those who are, or were, their licensees, and why it sued IBM instead of Red Hat. USL preserves its rights against licensees under the license agreements. I see no expanded rights against third parties who are not licensees, just the preexisting right to try to sue them, with the same likely outcome that USL experienced when it tried to sue the University and BSDi, using the same lame copyright claims that the judge back then found so unconvincing. The University agrees it won't stand in USL's way if they sue third parties:

"7. Further Participation in Litigation. The University agrees that it will not actively assist or support BSDI's defenses or counterclaims in the Federal Action or the efforts of any other party who asserts in any action the right to copy, use, or disclose to non-licensees of USL any of the material contained in the Restricted Files or the invalidity of USL's proprietary rights in the UNIX System. However, nothing in this provision shall prohibit the University from responding to any discovery permitted a third party under federal or state law or from defending any claim that may be asserted against the University or the Individual Regents."

USL makes the same assertion about "UNIX Derived Files", that they contain materials USL contends is derived from or based on UNIX, but which the parties agree the University can freely distribute under the terms of the settlement, meaning with a copyright notice and list of "restrictions on use and distribution" as per clause 2e:

"e. Without waiving any of its proprietary rights therein, USL agrees that UNIX Derived Files listed in Exhibit B, or any material therein, may be freely distributed by the University and may be freely reproduced and redistributed by others without payment of any royalties or fees and without execution of any license agreement with USL and/or the University, provided such files or portions thereof include, in text form, a USL Copyright Notice and the same list of restrictions on use and redistribution of the software presently contained in the Net2 version of the file. Attached as Exhibit F is a copy of said notice which has been agreed upon by the parties."

Notice the "may be freely reproduced and redistributed by others" part? I believe SCO tried to tell us they never gave Linux any such right to use, even with a copyright notice, but doesn't this clause seem to pull the rug out from that assertion? Here are some review links on SCO's position.

In turn, USL, in 3(f), agreed to "affix the University Copyright Notice and the University Acknowledgment" on all the files listed in Exhibit C, the
"Unrestricted Files," all the rest of the files in Net2, which the University asserted were derived from BSD Releases "which are contained in the UNIX System or are otherwise distributed by USL". I wonder if they have? Remembering the SCOForum disastrous unveiling, I'm thinking maybe not. Perhaps some of you out there can tell us. USL agreed not to take any action based on the use or distribution "by any person" of the Unrestricted Files.

Finally, the second Get-Out-of-Jail card is that everything in 4.4 BSD(Lite) "may be publicly distributed to third
parties free of any claim by USL of restrictions on its use or further distribution."

All the rest is FUD. Surprised?

What seems the most significant to me is that instead of filing this agreement with the court and getting the court to sign off on it, instead they agreed to file for a dismissal of the action and keep it just between the two of them. I see USL claiming it has certain rights, which may or may not be upheld if it ever went to a lawsuit, except with respect to the University, based on this settlement. Maybe they would be, maybe they wouldn't with respects to third parties. Feel free to correct me if you lawyers out there disagree, but that is how it reads to me.

dburns did most of the transcription, for which I thank him. I'm sure we all thank him for all he did. I did Exhibit C, and it had to be done by hand because the original is fuzzy, so please do let me know of any errors or typos. In certain cases, I simply had to make an educated guess as to what a letter was. I know with your expertise, you'll catch any mistakes, and we'll be able to perfect the list. For anything that matters, go by the original, of course. We strive for accuracy, but I can't guarantee it. Also, for those directly affected by this information, seek an attorney's opinion on what it all means. I am not one, as you know. Our contribution is simply to make it available.

***********************************

SETTLEMENT AGREEMENT

This Settlement Agreement is entered into between UNIX System Laboratories, Inc. ("USL"), a Delaware corporation, and The Regents of the University of California (the "University"), a California corporation.

Recitals

1. USL contends it is the owner of the intellectual property rights in portions of certain computer operating system software (the "UNIX System").

2. USL and USL's predecessor in interest, the American Telephone and Telegraph Co. ("AT&T"), have licensed the University to use certain versions of UNIX® system software, prepare derivative works therefrom, and to distribute such works according to the terms of the parties' license agreements.

3. The university has developed operating system software which it has released to third parties (the "BSD Releases"). Portions of the BSD Releases were developed independently by University personnel and others and portions of said releases were derived from versions of the UNIX System licensed to the University.

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4. Pursuant to license agreements with the University, USL has incorporated material derived from the BSD Releases in versions of the UNIX System.

5. In July of 1991, the University made a public distribution of certain operating system software known as the Second Networking Release ("Net2").

6. USL has brought an action against the University, the individual members of the Board of Regents of the University (the "Individual Regents"), and Berkeley Software Design, Inc. ("BSDI") in the United States District Court for the District of New Jersey, Civil No. 92-1667 (the "Federal Action") alleging inter alia that Net2 infringes USL's copyright in the UNIX System.

7. The University has brought an action in the Superior Court of the State of California, Alameda County, Case No. 717864-3 (the "State Action"), alleging that USL has failed to comply with certain provisions of its license agreements with the University in connection with USL's distribution of UNIX System software and seeking a declaratory judgment that the University's distribution of Net2 did not violate USL's rights.

8. The University wishes to issue another BSD Release ("4.4 BSD(Lite)") that may be publicly distributed to third

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parties free of any claim by USL of restrictions on its use or further distribution.

9. The parties wish to settle and compromise all of USL's claims against the University and the Individual Regents relating to distribution of Net2 and all of the University's claims against USL relating to the UNIX System and the BSD Releases in accordance with the terms and conditions set forth herein.

Definitions

The following definitions apply to terms used in this Settlement Agreement:

1. Restricted Files are files contained in Net2 which USL contends contain materials from the UNIX System and/or use or disclose methods and concepts contained in the UNIX System and whose further distribution is restricted pursuant to this Settlement Agreement. A list of the Restricted Files is attached as Exhibit A.

2. UNIX Derived Files are files contained in Net2 or 4.4 BSD(Lite) which contain material USL contends is derived from or based upon the UNIX System, but which USL has agreed may be freely distributed subject to the terms of this Settlement

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Agreement. The UNIX Derived Files include 23 files from 4.4 BSD(Lite) which, prior to the execution of this Settlement Agreement, USL has reviewed and approved for inclusion in the 4.4 BSD(Lite) release. A list of the UNIX Derived Files is attached as Exhibit B.

3. Unrestricted BSD Files are: all files which are contained in Net2 other than the Restricted Files and the UNIX Derived Files.

4. BSD Derived Materials are computer files or documents which the University contends are derived from the BSD Releases which are contained in the UNIX System or are otherwise distributed by USL. A list of the BSD Derived Materials is attached as Exhibit C.

Portions of this document are derived from software developed by the University of California, Berkeley, and its contributors.

Terms of Settlement Agreement

1. Incorporation of Sections. The "Definitions" set forth above are incorporated into and are made a part of this section entitled "Terms of Settlement Agreement."

2. Exchange of Materials for Inspection.

a. At or prior to the execution of this Settlement Agreement, the University shall deliver to USL a true and authentic copy, in text form, of each of the files listed on Exhibits A and B of this Settlement Agreement.

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b. Prior to the execution of this Settlement Agreement, USL shall have delivered to the University, subject to restrictions on use and disclosure, a true and authentic copy of System V, Release 4.0 of the UNIX System. The University shall return such copy upon or prior to execution of this Settlement Agreement.

3. Distribution and Use of Software.

a. The University agrees that it shall not make any further distributions of the Restricted Files. The University also agrees to take reasonable steps to encourage all persons who have obtained access to Net2 to substitute
4.4 BSD(Lite). Such encouragement shall include issuing the Joint Press Release attached as Exhibit D, notifying all University Net2 licensees of the availability of 4.4 BSD(Lite) and providing with said notification a copy of the Joint Press Release, posting the Joint Press Release and a notice on the Internet network about the availability of 4.4 BSD(Lite), and making known 4.4 BSD(Lite)'s availability when inquiries are made; in all such instances, the University shall recommend the substitution of 4.4 BSD(Lite) for Net2. The University agrees to mail a copy of the Joint Press Release to its Net2 licensees within thirty (30) days of the execution of this Settlement Agreement.

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b. The University agrees that USL may undertake an effort to advise persons of USL's contention that the Restricted Files may contain material which is proprietary to USL and which may not be copied, distributed, used, or further disclosed without express written permission of USL and that they have a three (3) month grace period within which to cease internal use of the Restricted Files by converting to 4.4 BSD(Lite) or otherwise. USL agrees that it shall take no action based upon the use of such files during the grace period against any person who ceases to make further distribution or disclosure of any material contained in the Restricted Files, including any methods and concepts contained therein, upon receiving such notice and who ceases internal use of the Restricted Files within the three month grace period.

c. USL agrees that it shall take no action against any person who utilizes any methods and concepts in the Restricted Files which as of this date have become available to the general public by acts not attributable to the University, its employees or students. Nothing in this provision shall limit USL's rights against a third party arising out of a breach of any license agreement with USL or AT&T.

d. The University agrees that to the extent 4.4 BSD(Lite) contains any material contained in the UNIX Derived Files, the files in which such matter is contained will include,

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in text form, the USL Copyright Notice and list of restrictions on use and distribution of the software required by section 2.e of this Settlement Agreement.

e. Without waiving any of its proprietary rights therein, USL agrees that UNIX Derived Files listed in Exhibit B, or any material therein, may be freely distributed by the University and may be freely reproduced and redistributed by others without payment of any royalties or fees and without execution of any license agreement with USL and/or the University, provided such files or portions thereof include, in text form, a USL Copyright Notice and the same list of restrictions on use and redistribution of the software presently contained in the Net2 version of the file. Attached as Exhibit F is a copy of said notice which has been agreed upon by the parties.

f. USL agrees that it shall affix the University Copyright Notice and the University Acknowledgment to the files listed in Exhibit C in the following manner:

(i) USL shall prepare a notice advising all licensees of UNIXWARE 2.0 that all or part of the files listed in Exhibit C are derived from materials licensed to UNIX System Laboratories, Inc. by the University of California and should be

8

deemed to contain the University Copyright Notice and the University Acknowledgment (the "Notice").

(ii) A printed copy of the Notice shall be distributed with all copies of UNIXWARE 2.0 distributed prior to January 31, 1995.

(iii) All copies of UNIXWARE 2.0 distributed prior to April 30, 1994 shall contain at least one "readme" file, in the root directory, setting forth the text of the Notice.

(iv) All copies of UNIXWARE 2.0 distributed after April 30, 1994 shall contain a "readme" file setting forth the text of the Notice in each directory containing any of the files set forth in Exhibit C, other than the .mk files, that does not contain a copy of the University Copyright Notice and the University Acknowledgment.

(v) In any future release of the UNIX System issued following the issuance of UNIXWARE 2.0, USL shall include the University Copyright Notice and the University Acknowledgment in all of the files listed in Exhibit C, other than the .mk files (the "Files"). In all events, USL shall include the

9

University Copyright Notice and the University Acknowledgment in all such Files in any copies of UNIXWARE 2.0 distributed after January 31, 1995. If any such File contains a copyright notice reflecting publication by the University at some date earlier than the dates appearing in the University Copyright Notice, USL shall not delete the reference to such earlier date(s) of publication, but shall include those dates in addition to the later dates reflected in the University Copyright Notice.

g. In any future release of the UNIX System issued following the issuance of UNIXWARE 2.0, USL shall include the University Acknowledgment in all .mk files listed on Exhibit C. In all events, USL shall include in any copies of UNIXWARE 2.0 distributed after January 31, 1995 the University Acknowledgment in all such .mk files.

h. USL agrees that it shall affix the University Copyright Notice on and include the University Acknowledgment in any future editions of the publications listed in Exhibit E and any new publications, documentation, instructions, books, pamphlets, or electronic or written communication of any kind including those for UNIXWARE 2.0, which include the BSD Derived Materials (the "New Publications"). If any such New Publications

10

have already been printed for UNIXWARE 2.0 without the University Copyright Notice and without the University Acknowledgment, USL shall reprint or amend them in such a way as to include said Notice and Acknowledgment.

i. USL agrees that it shall take no action based on the use or distribution by any person of material contained in the Unrestricted Files.

4. Joint Press Release. The parties agree to the issuance of the Joint Press Release within fifteen (15) days of the execution of this Settlement Agreement and to issue or authorize no statements which are inconsistent therewith.

5. Stipulations. Upon execution of this Settlement Agreement, the parties shall instruct their respective attorneys to enter into a stipulation in the United States District Court for the District of New Jersey, consenting to the vacatur of the orders and decisions entered in the Federal Action on March 3 and 30, 1993 denying USL's motion for a preliminary injunction and to the dismissal of the Federal Action, with prejudice and without costs to any party.

6. State Action Dismissal. Within fifteen (15) days following execution of this Settlement Agreement, the University shall file a dismissal of the State Action, with prejudice.

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7. Further Participation in Litigation. The University agrees that it will not actively assist or support BSDI's defenses or counterclaims in the Federal Action or the efforts of any other party who asserts in any action the right to copy, use, or disclose to non-licensees of USL any of the material contained in the Restricted Files or the invalidity of USL's proprietary rights in the UNIX System. However, nothing in this provision shall prohibit the University from responding to any discovery permitted a third party under federal or state law or from defending any claim that may be asserted against the University or the Individual Regents.

8. Releases.

a. USL hereby releases the University and the Individual Regents, their agents, servants, employees, predecessors, successors, parents, subsidiaries, affiliates and any other persons acting on their behalf, from any and all claims, whether known or unknown, arising out of or relating to the University's development and distribution of Net2 and any other matter that was the subject of any of the claims asserted by USL in the Federal Action.

b. The University hereby releases USL, its agents, servants, employees, predecessors, successors, parents, subsidiaries, affiliates and any other persons acting on their

12

behalf from any and all claims, whether known or unknown, arising out of or relating to USL's distribution of the UNIX System or any other products, documents or materials (including specifically any claim that USL failed to provide adequate recognition or proper notice in such products, documents or materials), or any other matter which was the subject of any of the claims asserted by the University in the State Action.

c. USL and the University waive the provisions of California Civil Code section 1542, which provides as follows:

"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."

9. The University's Representations and Warranties.

a. The University hereby represents and warrants that the execution, delivery, and performance of this Settlement Agreement has been duly authorized by all necessary action, and that the individual who executes this Settlement Agreement on the University's behalf is duly authorized to do so.

b. The University hereby represents and warrants that the files delivered to USL pursuant to Section 2(a) of this

13

Settlement Agreement are true and authentic copies of such files as included in Net2 or 4.4 BSD(Lite).

c. The University hereby represents and warrants that, to the best of its knowledge, information, and belief, with the exception of the UNIX-Derived files, 4.4 BSD(Lite) does not contain any material or methods and concepts (other than methods or concepts that have become available to the general public by acts not attributable to the University, its employees or students) contained in (i) the Restricted Files or (ii) any other UNIX System Software which is proprietary to USL. The University further represents and warrants that, to the best of its knowledge, information, and belief, to the extent 4.4 BSD(Lite) contains material distributed with the UNIX System which is not proprietary to USL, the University has been authorized to include such material in 4.4 BSD(Lite) by the owner of the rights thereto, in the event the University learns that 4.4 BSD(Lite) contains any materials which would violate any of the terms of this paragraph, the University shall so notify USL, promptly remove such material from future distributions of 4.4 BSD(Lite), and take appropriate action to advise persons who have received copies of 4.4 BSD(Lite) to remove such materials from their copies.

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10. USL's Representations and Warranties.

a. USL hereby represents and warrants that the execution, delivery, and performance of this Settlement Agreement has been duly authorized by all necessary action, and that the individual who executes this Settlement Agreement on USL's behalf is duly authorized to do so.

b. USL hereby represents and warrants that the software delivered to the University pursuant to Section 2(b) of this Settlement Agreement is a true and authentic copy of System V, Release 4.0 of the UNIX System.

11. Counterparts. This Settlement Agreement may be executed in one or more counterparts, and by the parties hereto in separate counterparts, each of which shall be deemed to be an original but all of which taken together shall constitute one and the same Settlement Agreement.

12. Fees and Costs. Each party to this Settlement Agreement shall pay its own costs and attorney's fees.

13. Non-Admission.This Settlement Agreement shall not constitute or be construed as an admission of liability by one party to the other or to any third party.

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14. Successors and Assigns. The burdens and benefits of this Settlement Agreement shall be binding upon the respective successors and assigns of USL and the University.

15. Confidentiality. Subject to the parties' agreement to issue the Joint Press Release, the parties agree to keep the contents of this Settlement Agreement confidential. The parties shall not provide a copy of this Settlement Agreement to anyone other than to those select employees of the parties and, in the case of USL, its parent, Novell Corporation, which have a legitimate need for access to this Settlement Agreement. This provision shall not preclude either party from disclosing the contents of this Settlement Agreement as necessary to inform others of the settlement, the restrictions on further use and distribution of Net2, and the parties' agreement regarding the use of 4.4 BSD(Lite). This provision shall not preclude the University from producing a copy of this Settlement Agreement if required to do so by federal or state law nor shall it preclude the parties from generally describing this Settlement Agreement in terms consistent with the Joint Press Release.

16. Effect on UNIX Software License Agreements. This Settlement Agreement shall not relieve either party of its respective rights and obligations pursuant to the existing UNIX software license agreements between the University and AT&T or USL, nor shall it alter any of the terms of such agreements.

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17. Amendments. This Settlement Agreement may be amended only by a written instrument executed by all the parties hereto.

18. Entire Agreement. This Settlement Agreement, including the Exhibits attached hereto, constitutes the entire agreement of the parties hereto with respect to the allegations and issues raised in the Federal Action and the State Action and supersedes any and all prior agreements of the parties, oral and written, with respect to the allegations and issues raised in said Actions.

DATED: 2/4/94

UNIX SYSTEM LABORATORIES, INC.

By:____[signature]____
Title: Senior Corporate Counsel
DATED: 2/4/94

APPROVED AS TO FORM

By:___[signature]____
Burton I. Levine, Esq.

Title: Senior Corporate Counsel,
UNIX System Laboratories,
Inc.

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DATED: February 4, 1994

THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA

By:____[signature]______
JOSEPH CERNY

Title: PROVOST FOR RESEARCH

DATED: February 4, 1994

APPROVED AS TO FORM

By:___[signature]_____
MARY E. MACDONALD, Esq.

Title: Attorney for The Regents of
the University of
California

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Restricted Files

(26 Files)

The following names refer to files in the form
contained in the Berkeley Software Distributions,
Second Networking Release.

UNIX System Laboratories, Inc. and the University of California, Berkeley have announced they have reached an agreement resolving their disputes. The settlement clears the way for the University to release a new, unencumbered version of the Berkeley 4.4 BSD operating system software, to be called 4.4 BSD-Lite.

Ray Noorda, Chairman of Novell, Inc., which recently acquired USL, called the settlement an "excellent example of what can be accomplished by cooperation between the business and academic communities." Mr. Noorda stated that "the settlement permits the University to accomplish its goals but preserves USL's legitimate interest in protecting its intellectual property."
David Hodges, Dean of the College of Engineering at University of California, Berkeley, said that the settlement "once again allows the University to resume its leading role of providing computer software technology transfer to industry. By providing wide distribution of 4.4 BSD-Lite with minimal restrictions on its use, the University will continue to be the focal point for both

EXHIBIT D

page 1 of 4

40

software research in and commercial development of truly open systems."

The University of California was one of the earliest licensees of UNIX operating system software, originally developed at AT&T's Bell Laboratories. In the 1980s, Berkeley's Computer Systems Research Group issued a series of "Berkeley Software Distributions" containing modifications to the UNIX software. However, because of licensing restrictions, public access to the source code for many of those modifications has been limited to firms holding licenses from USL, which acquired the rights to the UNIX system from AT&T.
In July 1991, the University issued the "Second Networking Release," also known as Net2, which was intended to make available to the public those portions of the Berkeley Software Distributions which were not subject to license restrictions. However, USL brought a lawsuit against the University, claiming that portions of the release contained restricted material. The University denied USL's claims. It also brought a separate action against USL alleging that USL had violated the terms of its Berkeley Software Distribution, also known as BSD, license

EXHIBIT D

page 2 of 4

41

agreements by failing to give the University credit for certain material in the UNIX release.

Over the past several months, attorneys and computer scientists representing the University and USL have worked together in an effort to reach a compromise on their disputes. The result of these efforts will be a new, unencumbered version of the latest Berkeley Software Distribution called 4.4 BSD-Lite which will retain virtually all of the functionality of the Second Networking Release along with a number of enhancements from the University's latest 4.4 BSD release.

The settlement restricts further use and distribution of certain files in the Second Networking Release and requires that certain files in 4.4 BSD-Lite include a USL copyright notice. In addition to providing several enhancements, the new 4.4 BSD-Lite Release will replace most of the restricted files and incorporates all the agreed-upon modifications and notices. Thus, 4.4 BSD-Lite will not require a license from nor payment of royalties to USL. The University strongly recommends that 4.4 BSD-Lite be substituted for Net2.

EXHIBIT D

page 3 of 4

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Although it has denied the University's claims, USL has also agreed to affix the University's copyright notice to certain files distributed with future releases of the UNIX system and to give credit to the University for material derived from BSD releases which have been included in the UNIX System.

Copies of the source code for 4.4 BSD-Lite may be obtained from the University at nominal cost. Source code copies and further information on 4.4 BSD-Lite and the restrictions on Net2 may be obtained from the Computer Systems Research Group at [redacted]. Information may also be obtained from USL's licensing offices at [redacted].

Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

1. Redistributions of source code must retain the above copyright notice, this list of conditions, and the following disclaimer.

2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions, and the following disclaimer in the documentation and/or other materials provided with the distribution.

3. All advertising materials mentioning features or use of this software must display the following acknowledgment:

This product includes software developed by the University of California, Berkeley, and its contributors.

4. Neither the name of the University nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.

THIS SOFTWARE IS PROVIDED BY THE REGENTS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE REGENTS OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS, OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.